Citation Nr: 0427052
Decision Date: 09/28/04 Archive Date: 10/06/04
DOCKET NO. 00-11 053 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder.
2. Entitlement to service connection for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
The veteran served on active duty from July 1977 to October
1981 and from January 1982 to June 1982.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a February 1999 rating decision of the
Philadelphia, Pennsylvania, Department of Veterans Affairs
(VA) Regional Office (RO). Thereafter, the veteran's file was
transferred to the RO in Boston, Massachusetts.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
Reasons for remand
1. Entitlement to service connection for an acquired
psychiatric disorder.
VCAA
The Veterans Claims Assistance Act (VCAA) of 2000, which has
since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West Supp. 2002), has enhanced the
duty on the part of VA to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. Regulations implementing the VCAA have been
enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2003).
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. See 38 U.S.C.A. § 5103 (West Supp. 2002); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a
letter from VA to an appellant describing evidence
potentially helpful to the appellant but not mentioning who
is responsible for obtaining such evidence did not meet the
VCAA standard].
After review of the record, the Board has concluded that the
veteran has not received notice that complies with the VCAA
and Quartuccio .
The regulation giving the Board direct authority to cure a
procedural defect in an appeal by providing the veteran
notice under the VCAA, 38 C.F.R. § 19.9(a)(2)(ii), has been
determined to be invalid as contrary to the statutory
authority, 38 U.S.C.A. § 5103(b). See Disabled American
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339
(Fed. Cir. 2003). Thus, if the record has a procedural
defect with respect to notice required under the VCAA, this
may no longer be cured by the Board.
Accordingly, the Board must remand the case to the Veterans
Benefits Administration (VBA) because the record does not
show that he was provided adequate notice under the VCAA and
the Board is without authority to do so. Under these
circumstances, it would potentially be prejudicial to the
veteran if the Board were to proceed with a decision at this
time. See Bernard v. Brown, 4 Vet. App. 384 (1993).
2. Entitlement to service connection for bilateral hearing
loss.
In an October 2001 rating decision, service connection was
denied for bilateral hearing loss. The veteran specifically
disagreed with that denial in June 2002. In Manlincon v.
West, 12 Vet. App. 238 (1999), the Court held that in these
circumstances, where a notice of disagreement is filed, but a
statement of the case (SOC) has not been issued, the Board
must remand the claim to VBA so that a SOC may be issued.
Accordingly, this case is REMANDED to VBA for the following:
1. VBA should ensure that all
notification and development action
required by the VCAA is completed. That
is, (1) inform the veteran about the
information and evidence not of record
that is needed to substantiate the claim;
(2) the information that VA will seek to
provide and what evidence he must
provide; and (3) inform him that he
should provide any evidence in his
possession that pertains to the claim.
2. Thereafter, VBA should readjudicate
the claim for entitlement to service
connection for an acquired psychiatric
disorder. If any benefit sought remains
denied, the veteran and his
representative should be provided a
supplemental statement of the case, which
reflects consideration of all additional
evidence, and should be given reasonable
opportunity to respond. Thereafter, the
case should be returned to the Board for
further appellate review.
3. VBA must issue a SOC pertaining to
the issue of entitlement to service
connection for bilateral hearing loss.
The veteran and his representative should
be provided with copies of the SOC and
advised of the time period in which to
perfect an appeal.
The purpose of this REMAND is to obtain additional evidence
and ensure that the veteran is afforded all due process of
law. The Board intimates no opinion, either factual or
legal, as to the ultimate conclusion warranted in this case.
No action is required by the veteran until contacted.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).